Phone: (832) 408-0505

Gratia Schoemakers

Power of Attorney

Virtual Estate Planning in the Age of COVID-19

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As the New Normal has set in, and the COVID-19 guidelines are making traditional estate planning services impossible, we are still receiving requests by people to do their estate plan.

If you are a fellow Texan looking to plan, we can help you. We have been helping people with their online planning for nearly a decade now, and are ready to serve you.

Our flat fee simple estate plan package includes:

The Texas Estates Code requires a valid Texas Will to be executed in the presence of two disinterested witnesses and a notary. To ensure both your and our team’s health and safety, we have implemented alternative methods of getting your documents signed, without needing to come to the office or leave your home.

Once we are retained, our Law Firm will prepare your estate plan package and electronically send the documents to you for review. You can review the documents with your attorney by telephone, or Zoom conference. We will provide you with detailed instructions on how to line up your two disinterested witnesses. We will also assist in scheduling a mobile notary to come to your location for the signing ceremony.

Once final edits to your documents are made, we will send you the final drafts to print. We will schedule a signing ceremony time to finalize your arrangements. When the time comes for the signing ceremony, we will utilize video conferencing software (compatible with most smartphones, tablets, and computers) so our attorney can guide you through the signing process.

How do I get started?

Step 1: Request or schedule an initial Consultation.

Step 2: Complete the online estate planning questionnaire.

Step 3: Our estate planning attorney go over the completed questionnaire with you, make any necessary changes, and draft your estate planning documents for you.

For questions or to schedule an initial consultation, call GP Schoemakers, PLLC at 832-408-0505 or book a consultation here.

How to Pick a Trustee, Executor, and Agent Under a Power of Attorney

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While the term fiduciary is a legal term with a rich history, it very generally means someone who is legally obligated to act in another person’s best interests.  Trustees, executors, and agents are all examples of fiduciaries.  When you pick trustees, executors, and agents in your estate plan, you’re picking one or more people to make decisions in your and your beneficiaries’ best interests and in accordance with the instructions you leave.  Luckily, understanding the basics of what each of these terms means and what to consider when making your choices can make your estate plan work far better.

duck and hatchlings

Trustee

A revocable living trust is often the center of a well-designed estate plan because it is simply the best strategy for achieving most individuals’ goals.  In many revocable living trusts, you will serve as the initial trustee and will continue to manage the trust assets as you had in the past.  Your successor trustee will be responsible for making sure your wealth is passed on and managed in accordance with your wishes after your death or during your incapacity.  Like each of the following individuals involved in your estate planning, it’s best to have a trusted person or financial institution carry out this vitally important role.

It’s important to make the language in your trust as clear as possible so that your trustee knows exactly how to handle various situations that can arise is asset distribution.  Lastly, your trustee will only control the assets contained within the trust — not the rest of your estate, the reason why completely funding your living trust is crucial.

Powers of Attorney

Your power of attorney is the document in your estate plan that appoints individuals to make decisions on your behalf if you become unable to do so yourself.  There are a few different types of powers of attorney, each with their own specific provisions.  There is quite a wide range of situations covered by various powers of attorney, and we can help you decide which types you’ll need based on your current situation and future goals.  Here are two common types to cover in your estate plan:

Financial Powers of Attorney

Financial powers of attorney grant individuals the ability to take financial actions on your behalf such as purchasing life insurance or withdrawing money from your accounts to cover your expenses.  A person who acts under the authority given in a power of attorney is generally called an agent.  Regarding financial decisions, an institution like a trust company, can also be named.  Keep in mind that trust companies will charge a fee for this service.

Health Care Powers of Attorney

Health care powers of attorney cover a wide range of specific actions that can be taken regarding an individual’s medical needs such as making decisions about the types of care you receive or who will be providing the care.

Executor

Your executor is the person who will see your assets through probate, if necessary, and carry out your wishes based on your last will and testament.  Depending on your preferences, this may be the same person or institution as your trustee.  You might also see this position designated as personal representative, but it means the same thing.

Some individuals chose to go with a paid executor.  This is usually someone who doesn’t stand to gain anything from your will, and is often the best choice if your estate is large and will be divided among many beneficiaries.  Of course, family or friends can also serve, but it’s important to consider the amount of work involved before placing this burden on your family or friends.

Being an executor can be hard work and may have court-ordered deadlines, so it’s crucial to pick someone you know will be up for the job.  They will probably need to hire a CPA to help sort out your taxes and a lawyer to assist in the process.  Of course, if there’s a dispute, attorneys, appraisers, mediators, or other professionals will undoubtedly need to be involved.  Choosing a spouse or someone else intimately involved in your life can be convenient because they may already be familiar with your assets and have an easier time making sure your wishes are carried out.  However, because of the time involved and the nature of some assets, they may not be up to the task at the time.

Get in touch with us today

Let us help you make the process of picking your trustee, powers of attorney, and executor as smooth and headache-free as possible.  Once you have these choices in place, you’ll be able to rest easy knowing that your estate plan is in good hands no matter what life brings.  Call or contact us to make an appointment today.

Legal Considerations When Getting Your New College Student Ready to Go

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If you are preparing to send your son or daughter off to college to pursue higher education, you may be wondering how their first semester of school will go.  During this exciting new chapter in your family’s life, the last thing you may be thinking about is estate planning for your college-aged child.  While your child may not have any assets (yet), once he or she turns 18, your child is considered an adult in the eyes of the law.  Before your kids go away, have a frank conversation with them about how much information — including grades, finances, health records — you will be able to access.graduation

Basic, Yet Crucial, Estate Planning Documents

Before your child is college bound, you should consider completing the following basic estate planning documents:

Healthcare Directive with HIPAA Authorization — While most parents assume when their child is away to college and is in need of medical attention (including mental health care) they will be immediately contacted and will have full rights to make decisions, this is simply not the case.  Once your child becomes 18 years of age, he or she is protected by HIPAA laws.  This means health care professionals cannot provide medical information without your child’s signed consent, even though your child may still be on your health insurance.  If there is no signed HIPAA release at the time, then you may need a court order to be able to access your child’s health information.  A Healthcare Directive appoints you as an agent that is able to make medical decisions on behalf of your child in the event he or she becomes ill or incapacitated.

Of note, each university or college may have its own form of medical release documents as well.  While these is no substitute for a Healthcare Directive, signing the school’s documents in advance will likely speed up the process in assisting your child in his or her healthcare needs.

Power of Attorney – similar to a healthcare directive, a durable power of attorney appoints an agent to make financial decisions on behalf of the individual.  This can allow you to have access to your child’s finances including bank accounts, scholarship funds, rental agreements, and insurance matters to name a few.

Prepare Ahead of Time

Many parents are actively involved in their college-aged children’s care and responsibility.  Nonetheless, turning 18 changes the legal landscape when it comes to your rights to address your child’s needs.  Preparing a legal plan for your college student ahead of time will greatly reduce any legal hurdles you may face as a family while he or she is attending college.  Before sending your child off to college, give us a call so we can help you craft a plan that protects your most valuable asset – your children.

Call or contact us today, we are here to help.

An Estate Planning Checklist to Facilitate Wealth Transfer

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Studies have shown that 70% of family wealth is lost by the end of the second generation and 90% by the end of the third.

Help your loved ones avoid becoming one of these statistics. You need to educate and update your heirs about your wealth transfer goals and the plan you have put in place to achieve these goals.

What Must You Communicate to Future Generations to Facilitate Transfer of Your Wealth?

You must communicate the following information to your family to ensure that they will have the information they need during a difficult time:

  • Net worth statement, or at the very minimum a broad overview of your wealth
  • Final wishes – burial or cremation, memorial services
  • Estate planning documents that have been created and what purpose they serve:
  • Durable Power of Attorney, Health Care Directive, Living Will – property management; avoiding guardianship; clarifying wishes regarding life-sustaining procedures
  • Revocable Living Trust – avoiding guardianship; keeping final wishes private; avoiding probate; minimizing delays, costs and bureaucracy
  • Last Will and Testament – a catch-all for assets not transferred into your Revocable Living Trust prior to death, or the primary means to transfer your wealth if you are not using a Revocable Living Trust
  • Irrevocable Life Insurance Trust – removing life insurance from your taxable estate; providing immediate access to cash
  • Advanced Estate Planning – protecting assets from creditors, predators, outside influences, and ex-spouses; charitable giving; minimizing taxes; creating dynasty trusts
  • Who will be in charge if you become incapacitated or die – agent named in your Durable Power of Attorney and Health Care Directive; successor trustee of your Revocable Living Trust and other trusts you’ve created; personal representative named in your will
  • Benefits of lifetime discretionary trusts created for your heirs:
  1. Fosters educational opportunities
  2. Provides asset, divorce, and remarriage protection
  3. Protects special needs beneficiaries (if properly drafted)
  4. Allows for professional asset management
  5. Minimizes estate taxes at each generation
  6. Creates a lasting legacy for future generations
  • Overall goals and intentions for inheritance – what the money is, and is not, to be used for (in other words, education vs. charitable work vs. vacations vs. Ferraris vs. business opportunities vs. retirement), and who will be trustee of lifetime discretionary trusts created for your heirs and why you’ve selected them
  • Where important documents are located – this should include how to access your “digital” assets
  • Who your key advisors are and how to contact them

How Can Your Professional Advisors Help You Communicate Your Wealth Transfer Goals?

Your professional advisors are well-positioned to help you discover your wealth priorities, goals, and objectives and then communicate this information to your heirs.  This, in turn, will prepare your heirs to receive your wealth instead of being left to figure it out on their own and, as statistics have shown, lose it all.

We are available to assist you with figuring out your wealth transfer goals, putting a plan in place to achieve these goals, and effectively communicating this information to your loved ones.

Call or contact our office now to set up an estate planning consultation appointment.  We make tough topics manageable to discuss and talk about.

Not Just Death and Taxes: 5 Essential Legal Documents You Need for Incapacity Planning

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Comprehensive estate planning is more than your legacy after death, avoiding probate, and saving on taxes.  Good estate planning includes a plan in place to manage your affairs if you become incapacitated during your life and can no longer make decisions for yourself.

What happens without an incapacity plan?

Without a comprehensive incapacity plan in place, your family will have to go to court to get a judge to appoint a guardian or conservator to take control of your assets and health care decisions.  This guardian or conservator will make all personal and medical decisions on your behalf as part of a court-supervised guardianship or conservatorship.  Until you regain capacity or die, you and your loved ones will be faced with an expensive and time-consuming guardianship or conservatorship proceeding.  There are two dimensions to decision making that need to be considered: financial decisions and healthcare decisions.

Finances during incapacity

If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself.  Of course, bills still need to be paid, tax returns still need to be filed, and investments still need to be managed.

Healthcare during incapacity

If you become legally incapacitated, you won’t be able to make healthcare decisions for yourself.  Because of patient privacy laws, your loved ones may even be denied access to medical information during a crisis and end up in court fighting over what medical treatment you should, or should not, receive (like Terri Schiavo’s husband and parents did, for 15 years).

You must have these five essential legal documents in place before becoming incapacitated so that your family is empowered to make decisions for you:

  1. Financial power of attorney: This legal document gives your agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document.

    Financial Powers of Attorney come in two forms: “durable” and “springing.”  A durable power of attorney goes into effect as soon as it is signed, while a springing power of attorney only goes into effect after you have been declared mentally incapacitated.  There are advantages and disadvantages to each type, and we can help you decide which is best for your situation.

  2. Revocable living trust: This legal document has three parties to it: the person who creates the trust (you might see this written as “trustmaker,” “grantor,” or “settlor” — they all mean the same thing); the person who legally owns and manages the assets transferred into the trust (the “trustee”); and the person who benefits from the assets transferred into the trust (the “beneficiary”).  In the typical situation, you will be the trustmaker, the trustee, and the beneficiary of your own revocable living trust.  But if you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit.  Since the trust controls how your property is used, you can specify how your assets are to be used if you become incapacitated (for example, you can authorize the trustee to continue to make gifts or pay tuition for your grandchildren).
  3. Medical power of attorney: This legal document, also called a medical or health care proxy, gives your agent the authority to make healthcare decisions if you become incapacitated.
  4. Living will: This legal document shares your wishes regarding end of life care if you become incapacitated.  Although a living will isn’t necessarily enforceable in all states, it can provide meaningful information about your desires even if it isn’t strictly enforceable.
  5. HIPAA authorization: This legal document gives your doctor authority to disclose medical information to an agent selected by you.  This is important because health privacy laws may make it very difficult for your agents or family to learn about your condition without this release.

Is your incapacity plan up to date?

Once you get all of these legal documents for your incapacity plan in place, you cannot simply stick them in a drawer and forget about them.  Instead, your incapacity plan must be reviewed and updated periodically and when certain life events occur such as moving to a new state or going through a divorce.  If you keep your incapacity plan up to date and make the documents available to your loved ones and trusted helpers, it should work the way you expect it to if needed.

Year End Estate Planning Tip #3 – Check Your Mental Disability Plan

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With the end of the year fast approaching, now is the time to fine tune your estate plan before you get caught up in the chaos of the holiday season.  One area of planning that many people overlook is making sure their mental disability plan is up to date.

Three Areas of Your Mental Disability Plan That Are Likely Out of Date

If your estate plan is more than a few years old, then your mental disability plan is likely out of date for the following reasons:

  1. Are your health care directives compliant with HIPAA? While the federal Health Insurance Portability and Accountability Act (known as “HIPAA” for short) was enacted in 1996, the rules governing it were not effective until April 14, 2003.  Thus, if your estate plan was created before then and you have not updated it since, then you will definitely need to sign new health care directives (an Advance Medical Directive and a Living Will – insert the names of these documents in your state) so that they are in compliance with the HIPAA rules.  With that said, it’s possible that health care directives signed in later years lack HIPAA language, so check with your estate planning attorney just to make sure that your estate plan documents reference and take into consideration the HIPAA rules.
  1. Is your Power of Attorney stale? How old is your Power of Attorney?  Banks and other financial institutions are often wary of accepting Powers of Attorney that are more than a couple of years old.  This means that if you become incapacitated, your agent could have to jump through hoops to get your stale Power of Attorney honored, if it can be done at all. This could cost your family valuable time and money.  Aside from this, in the past few years several states (including Florida and Ohio) have enacted new laws governing Powers of Attorney.  If you want to increase the likelihood that your Power of Attorney will work without any hitches if you lose your mental capacity, update and redo your Power of Attorney every few years so that it doesn’t end up becoming a stale and useless piece of paper.
  1. Does your estate plan adequately address mental disability? A will is something that only becomes effective when you die.  With today’s longer life expectancies come increased probabilities that you will be mentally incapacitated before you die.  A fully funded Revocable Living Trust is the best way to provide adequately for mental incapacity, but some older trusts do not.  If you signed your Revocable Living Trust more than 8 to 10 years ago and haven’t updated it since or have assets that are outside your Revocable Living Trust, then it may well lack modern and appropriate provisions for what to do with you and your property if you become mentally incapacitated.  Have your estate plan checked to ensure that it will work effectively and efficiently if you lose your mental capacity.  Otherwise you and your loved ones may end up in front of a judge who will have to sort out your financial matters – at horrendous cost.

What Should You Do?

Estate planning is about much more than having a plan for who gets your stuff after you die – it should also include having a plan for what happens in case you lose your mental capacity.  If your plan is more than a few years old or does not include a fully funded Revocable Living Trust, then chances are it lacks a good mental disability plan.  Now is the time to meet with an experienced estate planning attorney to ensure that you have a mental disability plan that will work the way you expect it to work if it’s ever needed. Call or contact our office now to set up an estate planning consultation appointment. We make tough topics manageable to discuss and talk about.